Sunija and Adithyan v Subair T.M. and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 27 [ TH ] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 ``` ``` MACA NO. 2231 OF 2014 ``` ``` AGAINST THE JUDGMENT DATED 19.08.2013 IN OPMV NO.1498 OF 2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 SUNIJA, AGED 28 YEARS,`** ``` VISHNU BHAVAN, VADAKKUMTHALA EAST, PANMANA, KARUNAGAPPALLY, KOLLAM DISTRICT, NOW RESIDING AT ‘INDEEVARAM’, MULLAKKERY, PANMANA MANAYIL, EDAPPALLIKKOTTA P.O., CHAVARA. ``` - **`2 ADITHYAN, AGED 8 YEARS, S/O.SAJEEVAN, VISHNU BHAVAN, VADAKKUMTHALA EAST, PANMANA, KARUNAGAPPALLY, KOLLAM DISTRICT, NOW RESIDING AT ‘INDEEVARAM’, MULLAKKERY, PANMANA MANAYIL, EDAPPALLIKKOTTA P.O., CHAVARA.`** ``` BY ADV SRI.R.GIREESH VARMA ``` ## **`RESPONDENTS/RESPONDENTS & 3RD PETITIONER:`** - **`1 SUBAIR T.M.,`** ``` S/O.MUHAMMED, VADAKKETHARAYIL, PONNAD P.O., MANNANCHERY, ALAPPUZHA, PIN-688 001. ``` ``` 2 HARIS, S/O.KOYA, DEVASWOM PURAYIDAM, BEACH WARD, ALAPPUZHA - 688 001. ``` - **`3 DR.BEENA KUMARI,`** ``` W/O. M.K.RAJU, THOTTATHIL, ASRAMAM P.O., KOLLAM - 691 002. ``` - **`4 M.K.RAJU,`** ``` KAMALAVILAS, ASRAMOM P.O., KOLLAM - 691 002. ``` MACA 2231 of 2014 2 ## **`5 THE MANAGER,`** ``` HDFC ERGO GENERAL INSURANCE CO. LTD, 523, 2ND FLOOR, ANNASALI, TEANAMPET, CHENNAI - 18. ``` ## **`6 THE MANAGER,`** ``` RELIANCE GENERAL INSURANCE CO. LTD, 1ST FLOOR, VISHNU BUILDING, K.P.VALLON ROAD, KOCHI - 20. ``` ## **`7 SARASWATHI AMMA,`** ``` M/O. SAJEEVAN, VISHNU BHAVAN, VADAKKUMTHALA EAST, PANMANA, KARUNAGAPPALLY, KOLLAM DISTRICT - 691 001. ``` ``` BY ADVS. SRI.AJAYA KUMAR. G., FOR R3 AND R4 ``` ``` SRI.GEORGE CHERIAN, SENIOR, SC, RELIANCE GENERAL INSURANCE CO.LTD. ``` ``` SMT.LATHA SUSAN CHERIAN, SC, RELIANCE GENERAL INSURANCE CO.LTD. ``` ``` SRI.K.B.RAMANAND, SC, HDFC ERGO GENERAL INSURANCE CO.LTD. SMT.K.S.SANTHI, SC, RELIANCE GENERAL INSURANCE CO.LTD. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2231 of 2014 3 ## **J U D G M E N T** This appeal is at the instance of petitioners 1 and 2 in OP(MV)No.1498 of 2010, who are the wife and son of deceased Sajeevan, challenging the award, on the ground of inadequacy of compensation. The 3rd petitioner in the OP(MV), who is the mother of the deceased, is arrayed as the 7th respondent in this appeal. 2. On 15.01.2010 at 7.30 a.m., while Sri.Sajeevan was pillion riding a motorcycle through Kollam-Alappuzha National Highway at Kuttivattom Junction, the motorcycle was knocked down by an Omni van bearing registration No.KL-4/T-7974, and thereafter, it dashed against a motorcar bearing registration No.KL-2/AB-6400. Sri.Sajeevan sustained fatal injuries, to which he succumbed on the same day at 1.00 p.m. Sri.Sajeevan was a watchman, aged 36 years, earning monthly income of Rs.4,965/-. His legal heirs approached the Tribunal claiming compensation of Rs.10,00,000/-. But the Tribunal awarded only Rs.6,65,202/-, and hence this appeal. 3. The 1st respondent was the owner of the offending MACA 2231 of 2014 4 Omni van, the 2nd respondent was its driver and the 5th respondent was its Insurer. Respondents 3, 4 and 6 are the owner, driver and Insurer respectively of KL-2/AB-6400 car, which was also involved in the accident. But the learned Tribunal fixed the liability only on respondents 1, 2 and 5, who are the owner, driver and Insurer respectively of the offending Omni van. 4. Heard learned counsel for the appellants and learned counsel for the 5th respondent-Insurer. 5. Learned counsel for the appellants would contend that the compensation awarded by the Tribunal is on the lower side, considering the fact that the deceased was a 36 year old watchman, having future prospects, and the appellants were solely depending on him. The appellants have stated before the Tribunal that the deceased Sajeevan was earning monthly income of Rs.4,965/-. The learned Tribunal accepted that income as such, to assess loss of dependency. But no addition was seen given towards future prospects. Going by the decision **National Insurance Company Ltd. v. Pranay Sethi** MACA 2231 of 2014 5 **and Others, [(2017) 16 SCC 680]** , if the deceased was self employed on a fixed salary, and aged below 40 years, 40% addition should have been given towards future prospects. If that be the case, the monthly income of the deceased could have been taken as Rs.6,951/- (4965 + 40%). He was having three dependents. So **⅓** has to be deducted towards his personal expenses. So the balance income for assessing loss of dependency could be taken as Rs.4,634/-. The multiplier applicable is 15. So the compensation for loss of dependency could be assessed as Rs.8,34,120/- (4634x12x15). The appellants were already awarded Rs.5,95,800/- towards loss of dependency. So, they are eligible to get the balance amount of Rs.2,38,320/- towards enhanced compensation for loss of dependency. 6. Towards funeral expenses, learned Tribunal awarded Rs.25,000/-. Going by **Pranay Sethi’s case** cited _supra_ , the appellants were entitled to get Rs.15,000/- only and so, they have to refund Rs.10,000/- under that head. 7. Towards loss of estate, the Tribunal awarded only MACA 2231 of 2014 6 Rs.5,000/-. As per **Pranay Sethi’s case** cited _supra_ , they were eligible to get Rs.15,000/-. So they are entitled to get Rs.10,000/- in addition towards loss of estate. 8. The appellants are the wife and minor child of deceased Sajeevan and the 7th respondent (3rd petitioner in OP(MV)) is the mother of Sri.Sajeevan. They are entitled to get Rs.40,000/- each towards loss of consortium, amounting to Rs.1,20,000/- in total. So, Rs.10,000/- awarded under the head compensation for loss of love and affection and Rs.10,000/- awarded under the head loss of consortium are to be deducted. So, the balance entitled towards enhanced compensation under that head is Rs.1,00,000/-. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.5,95,800/-|Rs.8,34,120/-||Rs.2,38,320/-| |Funeral<br>expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|| |Loss of estate|Rs.5,000/-|Rs.15,000/-||Rs.10,000/-| MACA 2231 of 2014 7 |Loss of love<br>and affection /<br>Loss of<br>consortium|Rs.20,000/-|Rs.1,20,000/-||Rs.1,00,000/-| |---|---|---|---|---| |Total|||Rs.10,000/-|Rs.3,48,320/-| |Enhanced compensation is Rs.**3,38,320/-**(3,48,320 - 10,000)||||| 9. The appellants and the 7th respondent are entitled to get the enhanced compensation of Rs.3,38,320/- (2,38,320 + 10,000 + 1,00,000)-10,000. 10. The 5th respondent-Insurer is directed to deposit the enhanced compensation Rs.3,38,320/- (Rupees Three Lakh Thirty Eight Thousand Three Hundred and Twenty only) in the Bank account of appellants 1 and 2 and the 7th respondent in the proportion 20:70:10 respectively, with interest at the rate of 9% per annum, from the date of petition till the date of deposit (excluding 250 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants 1 and 2 and MACA 2231 of 2014 the 7th respondent towards Tax, balance court fee and legal benefit fund. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-